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Monday, November 10, 2008

In the wake of the first black president I find myself in a daze still walking around in disbelief and feeling devoid of purpose like a soldier after a war has ended. However, while we were all captivated by last Tuesday's presidential election that reflected the decisive victory of progressive ideology over conservative ideology on the national stage, the conservatives still managed to win one battle on the state level with a little piece of legislation called Proposition 8. Prop 8 is an amendment to California's state constitution that bans gay marriage. It states: “[o]nly marriage between a man and a woman is valid or recognized in California.” The amendment, which ended 18,000 same-sex marriages, was in response to an earlier ruling from California's State Supreme Court. In that ruling, the court held that citizens of California had a fundamental right to marry regardless of sexual orientation.

Before I dive into the analysis of this issue I have to acknowledge my influences for this piece: first and foremost I am a Christian who believes in God; I am an African-American who believes in equality; and I am an attorney who believes in the United States Constitution. That being said, I submit that, regardless of how we may feel about same-sex marriage, the passage of Prop 8 is problematic for two reasons: (i) it is a violation of the separation of church and state; (ii) it is state-sponsored discrimination against the citizens of a state on the basis of sexual-orientation.

I. Church & State

Prop 8 is emblematic of the problem that is created when we mix church and state. The separation was crafted by America’s forefathers for a very good and simple reason: we don’t want the government to run our church, and likewise we don’t want the church to run our government. History has taught us again and again that if we violate this core principle, very bad things happen. Religious wars are waged, religious freedom becomes impossible, people die, etc. See 8th grade History Book in your parent’s garage for further details.

Even though the concept of state marriage is deeply embedded into our society, I submit that the State needs to get out of the marriage-making business altogether. Marriage is a function of the Church, and as such, falls squarely outside the control of the State. Opponents of same-sex marriage often cite to the Bible to prove that marriage is between one man and one woman. They are absolutely correct in arguing that the Bible provides ample support for the proposition that marriage is between man and woman (and between man and many women if we’re reading the Old Testament but that' s a different debate for a different day). However, the fact that this support exists in the Bible, and not the Constitution, only proves the point that this is an issue for the Church and not one for the State.

Once the Church has issued a marriage, the State’s roll should then become very simple. The State’s only concern at that point should be making sure it properly administers joint tax returns and tax benefits, visitation rights in hospitals, estate distribution and inheritance upon the death of one of its citizens, child custody rights, and other normal state functions. The State should not, however, involve itself in the decision of who actually gets to become married. That decision should be left between the people and their respective Churches lest we involve our government in the regulation of our religious beliefs.

II. State-Sponsored Discrimination

Putting the separation of Church and State debate aside, Prop 8 poses a problem because it creates state-sponsored discrimination. The Equal Protection Clause of the 14th Amendment to the United States Constitution mandates that “[n]o state shall…deny to any person within its jurisdiction the equal protection of the laws.” In other words, each state is free to make up its own laws that effect our daily lives so long as those laws are administered equally among the citizens of the state. When a state law treats one group of citizens one way, and another group of citizens a different way, that law violates the Equal Protection Clause and may be struck down by the Court as unconstitutional.

In the instant case, the State of California has passed a law that allows one group of citizens to become married, while denying that same right to another group of citizens. The law separates the two groups of who can and can’t marry based upon their sexual orientation. By doing this, it discriminates on the basis of sexual orientation. California’s law also discriminates on the basis of sex because its rational basis is rooted in the enforcement of gender roles and gender definitions. The Constitutional problem with Prop 8 is further exacerbated when we consider that the right to marry has long been well established as one of the fundamental rights protected by the Due Process Clause of the 14th Amendment for all citizens to enjoy if they so choose.

Since Prop 8 is an actual amendment to California’s state constitution, the only way it can be overturned is upon order of a federal court (namely, the United States Supreme Court).* Given the growing controversial nature of this issue, I’m going to go out on a limb here and predict that we’ll probably see a case from California make its way over to D.C. sometime in the near future.

* - CORRECTION: Marsha stated an assumption that I made that is worth noting. That is to say, there are actually 2 ways that a state constitutional amendment can be overturned, one is by an order of a federal court saying that it violates the federal constitution as I noted above, but the second way is for the people to actually put another amendment on the ballot that repeals this amendment. I assumed that the people of California would likely vote the same way if there was a "do over" but I could be wrong so it's worth mentioning the second way for accuracy's sake. *

III. Conclusion

Whether or not we personally agree with same-sex marriage, state-sponsored initiatives like Prop 8 are not sound policy. My Christian faith teaches me that we are all God’s children, that God lives in each of us, and that we should do unto others and we would have them do unto us. How then do we justify creating laws that deprive the rights of others but do not deprive our own rights? As an African-American living in the United States, I am painfully aware of the struggle that my community has gone through and is still currently going through in order to seek equality, despite this historic election. How then do we justify creating laws that would block equality for others? As an attorney, I took an oath to uphold the Constitution to the best of my ability. How then do we justify laws that we know allow states to discriminate against certain groups of people in violation of the Constitution?

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